Thursday, May 10, 2012

The Doctrine of Discovery at the UN

The
Permanent Forum is an advisory body to the Economic and Social Council with a mandate
to discuss indigenous issues related to economic and social development,
culture, the environment, education, health and human rights.

The
Permanent Forum is comprised of sixteen independent experts, who serve for a
term of three years. Eight of the Members are nominated by governments and
eight are nominated directly by indigenous organizations in their regions. The current representative for the Pacific
region is Valmaine Toki, a senior lecturer in the Faculty of Law at Waikato
University.

According
to its mandate, the Permanent Forum will:

provide
expert advice and recommendations on indigenous issues to the Council, as
well as to programmes, funds and agencies of the United Nations, through
the Council;

raise
awareness and promote the integration and coordination of activities
related to indigenous issues within the UN system;

prepare and
disseminate information on indigenous issues.

The special theme for the current session of the
Permanent Forum is “The Doctrine of Discovery: its enduring impact on
indigenous peoples and the right to redress for past conquests (articles 28 and
37 of the United Nations Declaration on the Rights of Indigenous Peoples)”.

The Doctrine of Discovery is an international legal
construct which was used by European states from the 15th century onwards to
exert rights of conquest and dominance over non-Christian indigenous
peoples. The origins of the Doctrine can
be seen in a decree issued by Pope Nicholas V in 1455. This type of communication is known as a ‘papal
bull’, and the papal bull which provides the basis for the Doctrine of
Discovery is titled Romanus Pontifex.
The particular purpose of this papal bull was to legitimise the King of
Portugal’s claim to colonial territories in Africa. In doing so, Pope Nicholas
V set out a framework for the subjugation of non-Christian peoples by Christian
state of Europe. The basic principle
that underlies the Doctrine of Discovery is that Christian states could assert
territorial authority and rights over lands and resources by virtue of “discovery”. “Discovery”, in this context, was something
that only Christian peoples could assert.
The first Christian state to assert territorial authority would be
recognised, despite the fact that there may have already been non-Christian,
indigenous societies established on those lands. In Aotearoa, for example, Hobson proclaimed
the sovereignty of the British Crown, in relation to the South Island, by
virtue of discovery, despite the obvious presence of pre-exisitng Māori
communities there.

The Doctrine of Discovery became a fundamental support
for colonial powers and the process of colonization. The Doctrine is reflected starkly in the way
in which colonial legal systems have dealt with the rights of indigenous
peoples. In an influential decision of
the United States Supreme Court from the 1820s, Chief Justice John Marshall
describes the terms of the royal charter issued by the British Crown to assert
authority in the Americas as follows:

In this first effort made by the English government to acquire territory
on this continent, we perceive a complete recognition of the principle [of
discovery] which has been mentioned. The
right of discovery given by this commission, is confined to countries “then unknown
to all Christian people”; and of these countries Cabot [an explorer under
patronage of King Henry VII] was empowered to take possession in the name of
the king of Engalnd. Thus asserting a
right to take possession, notwithstanding the occupancy of the natives, who
were heathens, and, at the same time, admitting the prior title of any
Christian people who may have made a previous discovery.

There is a clear injustice in the Doctrine of
Discovery, which has been described by a former Special Rapporteur on the
Rights of Indigenous Peoples as “The Framework of Dominance”. In a presentation to the Permanent Forum this
week, Moana Jackson urged people to remember that the effects of the Doctrine
of Discovery have been far-reaching:

. . . while the Doctrine of Discovery was always promoted in the first
instance as an authority to claim land of indigenous peoples, there were much
broader assumptions implicit in the doctrine.
For to open up an indigenous land to the gaze of the colonising “other”,
there is also in their view an opening up of everything that was in and of the
land being claimed. Thus, if the
Doctrine of Discovery suggested a right to take control of another nationa’s
land, it necessarily also implied a right to take over the lives and authority
of the people to whom the land belonged.
It was in that sense, and remains to this day, a piece of genocidal
legal magic that could, with the waving of a flag or the reciting of a
proclamation, assert that the land allegedly being discovered henceforth
belonged to someone else, and that the people of that land were necessarily
subordinate to the colonisers.

It is because of its
far-reaching consequences, the effects of which indigenous peoples continue to
feel today, that the Permanent Forum determined that this topic should be the
special theme for the current session. Many states, churches, and other organisations
have now formally rejected the Doctrine of Discovery. While this is an important step,
and certainly welcomed by indigenous peoples, the next step would be for those
that have profited from the Doctrine of Discovery, to actively support
indigenous peoples to undo the consequences of the application of the doctrine.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review